Vol 44. No. 1 Fall 2019 | School of Law | SIU

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Vol 44. No. 1 Fall 2019

ARTICLES

Let Us Reason Together: A More Effective, Less Partisan Approach to Gun-Related Violence

Amy Swearer.................................................................................................. 1

In a time when gun-related violence is becoming an increasingly contentious and unavoidable policy topic, it can often seem as though there is no middle ground—as one common refrain goes, there are those who love guns more than their children, and those who love their children more than guns. It is a grotesque oversimplification, however, to reduce conversations on gun-related violence to conversations about gun control, much less to accusations of ill-intent on the part of those opposing it. There is, indeed, a path of least resistance for meaningfully combating gun-related violence, and it is to focus on the role of untreated serious mental illness. This approach creates a space for bipartisan collaboration that otherwise does not exist and allows the nation to address very real underlying problems that are too often ignored. Policymakers need not engage in unnecessary battles to significantly restrict the Second Amendment rights of law-abiding citizens when there exists another approach to gun-related violence that both avoids serious constitutional problems and better addresses the underlying factors associated with gun-related violence than will commonly proposed gun control laws.

 

Exploring Legal Issues in Tribal Public Health Data and Surveillance

Aila Hoss....................................................................................................... 27

Law is the foundation of public health practice, including the underpinnings of public health data collection and surveillance and ensuring the privacy of such data. Much has been written on public health data and surveillance at the state and local level. Yet, Tribal law and the federal laws that define the relationships between Tribes, states, and the federal government add an additional complexity to the collection and surveillance of law for American Indian and Alaska Natives. This article explores legal issues in Tribal data and surveillance. First, this article provides a summary of Tribal public health and health care systems. Next, it outlines surveillance laws and practical challenges in Tribal surveillance. Finally, it describes some of the legal strategies used to promote effective data collection and surveillance

 

Cogs in the Machine: Two Countries Attempt to Balance Individualized Concerns in the Pursuit of Public Health

Oliver J. Kim..................................................................................................41

Just like an online video going viral, healthcare can now be crowdsourced, providing a new method for public health officials to follow and analyze trends in a community’s health. For example, data that might have been impossible to collect, sort, and analyze, may now be assembled and processed in large sets by actors such as Big Tech and Big Data. Doing so could help researchers, policymakers, and public health officials make better decisions on critical interventions to improve health across entire communities. But having vast amounts of information about individuals and their health status freely flowing may raise alarm if health information gathered by clinicians and medical researchers is used for unauthorized non-clinical purposes.

This article analyzes this tension and provides a legal and policy comparison between the United States and Australia. First, this article provides a general overview of the public policy promises made when both countries embarked on significant campaigns to digitize health information. Second, this article examines the disconnect between policymakers’ proposals seeking to free health information and the distrust both from the public generally and from certain specific segments of society. Third, this article discusses the public health challenge of opioid misuse facing both countries, and the fourth section explains how health information technology is being utilized to address this challenge and some of the concerns that have been raised about this type of surveillance. Finally, this article offers policy recommendations for Australia as it contemplates how to best utilize health information technology to address its opioid crisis based on the American experience. Hopefully, such recommendations will produce collaborations that will not only lead to political, legal, and ethical changes to improve public health surveillance but also to a better system that will save lives and improve individuals’ health and well-being as well.

 

Examination of Psychiatric Health Disparities & Selected Laws

Rahn Kennedy Bailey.......................................................................................... 63

Providing adequate healthcare to individuals in the United States is an ambitious goal. Healthcare is at the confluence of medicine, politics, economics, philosophy, ethics, and the law. Many poignant questions are brought forth when examining this multifaceted issue: Does every individual deserve access to adequate healthcare? How does one quantify, establish, attribute, and enforce a uniform cost to healthcare? Is optimal healthcare only to be enjoyed by those with abundant resources? Some, including Martin Luther King, have contended that healthcare is a human right. Academics and politicians have spent many years attempting to conjure up answers to these fundamental questions. Sadly, during these times of heated and often ineffectual rhetoric, we are still without remedies to many of the healthcare disparities plaguing vulnerable groups. This article explores some of these disparities and reviews select laws in an effort to further the discussion of how healthcare and policy intersect in America. 

NOTES  

“Catfishing”: A Comparative Analysis of U.S. v. Canadian Catfishing Laws & Their Limitations

Antonella Santi..................................................................................................73

In recent years, the internet has proven to be an “effective tool” in facilitating communication between individuals on a global scale. However, despite its advantages, the internet has also proven to be an “effective tool” for perpetrators who mask themselves behind a computer screen and deceive others through online impersonation for malicious purposes, self-gain or pastime. This is otherwise known as “catfishing.” In response to the prevailing nature of catfishing today and the absence of laws to address the issue, this note conducts a comparative analysis of the existing anti-catfishing laws in both the U.S. and Canada. Part II provides background information on catfishing. Part III provides an overview of existing laws in the U.S. that address catfishing. Part IV provides an overview of Canadian laws that address catfishing. Part V sheds light on the inadequacies of catfishing laws in the U.S and Canada. Lastly, Part VI gives possible suggestions for addressing the issue of catfishing and criminalizing such conduct in both the U.S. and Canada.

 

“Parking While Black”: Pretextual Stops, Racism, Parking, and an Alternative

Stephen D. Hayden ........................................................................................... 105

This note argues that through a series of Supreme Court holdings, culminating in Whren v. United States, that the current view on racially based profiling in traffic enforcement amounts to: “Don’t ask, don’t tell.” Twenty-two years after Whren, instead of reining in a police tactic that furthers feelings of resentment towards police by the African American community, the courts are expanding the pretextual stop doctrine. The latest evolution of the carte blanche approval of pretextual stops has been for courts to hold that Whren applies to non-moving, parking violations.

This note will question the wisdom of the hardline distinction between the home and the automobile, especially when an automobile is parked. As they are increasingly likely to contain private, personal information to which individuals have a reasonable expectation of privacy, automobiles are now, more than ever, deserving of robust Fourth Amendment protections. This note proposes a new legal test to determine when a pretextual stop violates the Fourth Amendment. This test is designed with a nonmoving vehicle in mind but could also be applied to moving vehicles.

This test also creates a middle ground for proponents of the old “pretext rule” approach (which stated that any seizure based on a pretext was unreasonable under the Fourth Amendment) and supporters of the current rule of Whren (which allows pretextual Fourth Amendment seizures). This approach also addresses those who have long argued for the need of flexibility in police tactics for enforcing laws, particularly when officers have developed suspicions based on their observations.

 

What’s Really Happening Down on the Farm

Lori Haas ....................................................................................................... 143

When you hear occupational descriptions such as ultra-hazardous, high fatality rates, or unpredictable workplace environment, which occupations first pop into your mind? Some likely candidates might be aircraft pilots, iron and steel workers, police officers, or electrical power-line installers. It’s not likely that a small family farm located in the rural Midwest would first come to mind, and if it did, you probably grew up on a farm or within a farming community. Although agriculture is one of the most dangerous industries in the United States, few understand the realities of its day to day operations. As a result, small farms are excepted from Occupational Health and Safety Administration (OSHA) enforcement and from workers’ compensation statutes. The confusion caused by these exceptions coupled with the lack of understanding and appreciation of how the small farming industry works leads to inconsistent results when negligence claims against farm employers by farm employees are brought to court.

This article addresses this inconsistency by proposing a set of factors to help judges and juries focus on the key characteristics of the farm at issue, thereby minimizing guess work and irrelevant considerations and in turn producing consistent and fair judgments. Part II provides background on the dangers of small farming, OSHA’s failed attempts to regulate small farming, and how these conditions can result in inconsistent legal consequences. Part III analyzes the issues with the current application of common law tort principles as applied to OSHA-exempt and workers’ compensation-exempt small farms. Part IV proposes a multi-factor test to determine whether a small farm employer has breached his or her duty of care to provide a reasonably safe place to work to the employee.